Decision No. 13,060

(December 3, 1993)

Jerry Greenberg, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Esq., Corporation Counsel, attorney for respondent, Mercedes Colwin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals a determination made on April 14, 1992 by the Office of Pupil Transportation of the City School District of the City of New York, which terminated petitioner's school bus operator's certificate. The appeal must be sustained.

Petitioner is employed by Careful Bus Service, Inc. ("Careful"), which contracted with respondent to transport public school students. Petitioner was certified by respondent as a school bus operator on October 22, 1985.

During the 1989-1990 school year and at least part of the 1990-1991 school year, petitioner operated a school bus for Careful on a route which required him to pick up public school students in Staten Island in the morning and deliver them to Junior High School #47 in Manhattan. In June 1991, respondent's Office of the Deputy Commissioner of Investigations began investigating allegations that petitioner had engaged in sexual activity with one of the students he transported and had violated certain standards of conduct established in the contract between respondent and his employer. On August 8, 1991, the Office of Pupil Transportation notified Careful that petitioner was suspended from performing any services for the school district.

On September 4, 1991, the Office of Pupil Transportation issued a Notification of Complaint and Summons to Appear at a disciplinary conference on September 5, 1991. These documents indicated that the disciplinary conference would address whether petitioner had operated vehicles in an unsafe manner and the fact that his driver's abstract from the Department of Motor Vehicles indicated various traffic infractions over several previous years. The disciplinary conference confirmed the existence of several prior violations, all of which were unrelated to petitioner's employment. The decision rendered following that conference found that petitioner "would have been returned back [sic] to duty as a result of this conference but unfortunately this office was notified that due to an impending investigation by the Deputy Commissioner of Investigation's Office, Mr. Wallen was not permitted to return to duty." Petitioner continued to be employed by Careful, but performed only duties which did not relate to the city school district.

On or about February 25, 1992, petitioner was served with a second Notification of Complaint and Summons to Appear before a disciplinary conference scheduled for February 27, 1992. These documents state the only charge as follows: "Driver engaged in illicit conduct with students assigned to his school bus." On February 27, 1992, the disciplinary conference was conducted by the same hearing officer who had conducted the first disciplinary conference. The only witness to testify against petitioner was an investigator from the Office of the Deputy Commissioner of Investigations, Clement Krug. Petitioner testified on his own behalf and called as a witness his co-employee Joyce Schechter, who had been employed as a matron on the bus driven by petitioner.

On April 14, 1992, the hearing officer determined that petitioner engaged in sexual misconduct with two female students, that he had offered both girls employment, that he had given both students money and jewelry and that he had "an erratic driving pattern." The hearing officer further determined that petitioner's certification to operate a bus providing services to the city school district should be terminated immediately.

Petitioner denies any form of sexual contact with any student passengers. Petitioner also points out that none of the traffic infractions shown on his record were committed while he was on duty as a bus operator. Petitioner admits that he gave several small gifts to students at various times, but denies that they justify termination of his operator's certificate. He further points out that no proof was offered at either hearing to support the allegation that he had offered jobs to students. Petitioner further argues that the record as a whole does not contain substantial evidence to support the determination.

Respondent contends that it was well within its right to discipline petitioner pursuant to Education Law '3624 and pursuant to its contract with Careful. Respondent contends that the evidence supports the final determination.

As a threshold matter, petitioner does not challenge the right of a school district to pass upon the fitness of a privately employed school bus operator (Education Law '3624; Matter of Lawson v. Greenburgh Central School District, 50 AD2d 893; Matter of Morales v. William Floyd Union Free School District, 125 Misc. 2d 310). Rather, petitioner claims that the hearing did not elicit evidence which supports the determination.

Where a hearing is held in such cases, there must be substantial evidence in the record as a whole to support the findings and determination (Matter of Brigandi v. Board of Education, 119 AD2d 573). In this case, the appeal must be sustained because the record does not contain substantial evidence to support the findings and determination.

With respect to the allegations of sexual misconduct, only hearsay evidence was presented at the hearing conference to support the charge. It is well established that hearsay evidence may be introduced and used in administrative hearings. It has also been held that, in some cases, hearsay evidence alone may be used to meet the substantial evidence standard of proof. For example, in Matter of Gray v. Adduci (73 NY2d 741), an administrative prosecution within the Department of Motor Vehicles for refusal to submit to a chemical test, the only evidence introduced against the motorist was the arresting officer's out-of-court written report. The Court of Appeals nevertheless decided that there was substantial evidence to support the conclusion or ultimate fact that the motorist had refused the test. Similarly in Matter of Triple A Auto Driving School, Inc., v. Foschio (65 NY2d 755), an administrative prosecution within the Department of Motor Vehicles against a driving school which allegedly continued to operate while under a license suspension, the only evidence produced was an out-of-court affidavit by a student who received and paid for lessons on two dates during the period of suspension, together with supporting documentation and the hearsay testimony of the inspector who conducted the investigation. The Court of Appeals found that because the checks accompanying the affidavit bore the driving school's endorsement and the driving school failed to put forth any evidence on its own behalf, the substantial evidence test had been met. However, in both Matter of Gray and Matter of Triple A, the hearsay consisted of an out-of-court writing prepared by a first-hand participant in the events at issue. For that reason, the court found sufficient reliability to support the ultimate conclusion of the hearing.

The hearing record in this case presents no such indicia of reliability. The testimony of Inspector Krug--the only evidence introduced by respondent--related the comments to him of the two girls who were supposedly the victims of sexual abuse. Moreover, much of the testimony deals with Inspector Krug's conclusions about the results of his own investigation. The additional materials presented with respondent's answer, consisting in significant part of Inspector Krug's summaries and notes of his investigation, including his various interviews with the alleged victims, do nothing to bolster his testimony in the administrative hearing. Indeed, the hearsay statements of the alleged victims are hopelessly contradictory and leave the reader with no real conviction that any sexual conduct at all occurred. Taken as a whole, the proof offered in the hearing of February 27, 1992 does not meet the standard of substantial evidence as enunciated in 300 Gramatan Avenue Associates v. State Division of Human Rights, (45 NY2d 176): "In the final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably-probatively and logically [citations omitted]."

While petitioner has admitted making several insignificant gifts to all of his riders, not just the two girls, I agree that such misconduct is not sufficient grounds to terminate his certificate. With respect to the motor vehicle infractions, the violations discussed at the February 27, 1992 hearing are the same ones discussed at the September 5, 1991 hearing, and there is no reason why respondent should not be held to its original determination that those violations were not by themselves sufficient to sustain a further suspension. I also note that no proof was introduced at either hearing that petitioner allegedly offered employment to certain students.

THE APPEAL MUST BE SUSTAINED.

IT IS ORDERED that the respondent's determination dated April 14, 1992 be annulled, and that petitioner be certified to perform services on behalf of his employer for respondent school district.

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